Citation Nr: 21064922 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 19-11 568 DATE: October 22, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's PTSD began during his active military service, or that he had a psychosis within a year of his discharge from service (PTSD, instead, is a neurosis), or is otherwise related or attributable to his service particularly to any especially traumatic event ("stressor") during his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for PTSD. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.384. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1985 to July 1990 and had additional periods of active service in the Air Force Reserves until at least 1993. This appeal to the Board of Veterans' Appeals (Board) originated from a November 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ), in relevant part, denying this claim for service connection for PTSD. The Board remanded this claim back to the RO (AOJ) for July 2020 and again in February 2021 for additional development and consideration including for a VA examination and medical opinion addressing the nature and etiology of the Veteran's claimed PTSD, particularly in terms of whether related or attributable to a stressor(s) during his military service. There since has been the required compliance, certainly the acceptable substantial compliance, with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for an acquired psychiatric disorder, including PTSD The Veteran contends that he has PTSD from his especially traumatic experiences ("stressors") in service including particularly racist encounters with other servicemembers and incidents of failed tasks causing emotional distress. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service' the so-called 'nexus' requirement." See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for PTSD, in particular, requires: (1) a medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) meaning in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specifically claimed in-service stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). Pursuant to the "benefit-of-the-doubt" rule, when there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Preliminarily, the Board first points out that the July 2021 VA PTSD examination on remand did not find the Veteran meets the DSM requirements for this diagnosis but nonetheless did mention a prior PTSD diagnosis predicated on a purported incident in service involving children killed in a combat zone. However, this VA examiner explained that, while combat zone exposure ordinarily might provide an acceptable stressor to fit DSM diagnostic criteria, the Veteran notably did not discuss that combat incident during his mental status evaluation. Rather, he only discussed experiences that, according to this VA examiner, conversely do not satisfy DSM diagnostic criteria for PTSD. A comprehensive review of the case file revealed these combat-related incidents were not reflected in the Veteran's medical record but, instead, come from the record of an Army Veteran so concern someone else entirely, i.e., another Veteran whose treatment notes unfortunately were mistakenly integrated into this Veteran's case file. These erroneous records since have been removed from this Veteran's case file. His treatment notes have been comprehensively reviewed. No combat exposure or engagement is reflected or otherwise documented in the records concerning him, specifically, in either his in-service or post-service military or medical documents. Generally, a VA examiner's opinion based on factually inaccurate information is inadequate and requires a remand. See Reonal v. Brown, 4 Vet. App. 384 (1993). However, here, the examiner already noted the inconsistency in the record without basing her opinion on the inaccurate information. Rather, she noted the possible existence of a prior diagnosis but offered her medical opinion based on the more current, prevailing evidence immediately before her. The Board accordingly finds both that the examiner did not base her opinion on factually inaccurate information and that her examination is otherwise adequate, so yet another remand of this claim is not required. Further regarding this claim, there is no competent, current PTSD diagnosis anywhere on record. See 38 C.F.R. § 4.125(a). However, provider notes from August 2018 refer to a "past history of PTSD," while November 2018 notes reflect a "provisional diagnosis" of PTSD, with symptoms occurring for the prior 10 years, so since approximately 2008, but that was some 15 years after the Veteran's separation from service without the required attribution of the diagnosis, even were the Board to accept it, as being the result of any stressor during his service that has been objectively confirmed or that does not need to be if, as an example, predicated on something that happened in combat. 38 C.F.R. § 3.304(f)(2). These records posit the Veteran "meets the diagnostic criteria" for PTSD, and VA must assume the validity of this diagnosis as in accordance with the DSM criteria. Cohen v. Brown, 10 Vet. App. 128 (1997). But, as importantly, there is no discussion of how the diagnostic criteria are met in relation to his military service, specific stressor events during his service, or circumstances other than "exposure to violence." Crucially, none of the Veteran's medical records, and very few of his own statements, attribute his PTSD symptoms or diagnosis to anything that occurred during or coincident with his time in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The record clearly reflects that the Veteran did not actively engage in combat, so the so-called "combat presumption" of 38 C.F.R. § 3.304(f)(2) does not apply. See also 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) (discussing this presumption when the claim is not specifically for PTSD). A finding that the Veteran engaged in combat with the enemy requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality and does not apply to Veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). Here, his own statements place symptom onset more than 10 years after he separated from the Air Force Reserves in 1993. That long a lapse of time between conclusion of his service and initial indication of this now claimed disability tends to refute the notion this mental disorder dates back to his service or is related or attributable to his service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no indication the Veteran sought mental health treatment in service or experienced identifiable trauma or loss during his service. He has credibly, repeatedly stated that he experienced racist interactions in the military and experienced distress and embarrassment at various times on active duty. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Indeed, these were the stressors identified during his July 2021 VA PTSD examination as not meeting the criteria for stressor events according to the DSM-V. However, those experiences also were cited during his prior June 2020 VA mental health evaluation and partly provided the grounds for granting service connection, instead, for his major depressive disorder (MDD). See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Clemons concerned VA's failure to consider a claim of entitlement to service connection for a psychiatric disorder other than the one specifically claimed, even though it shared the psychiatric symptomatology for which the Veteran was seeking service connection. The Clemons Court found that, where a Veteran's claim identifies PTSD, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record. The Clemons Court indicated that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. This is consistent with the Veteran's treatment history. Prior providers from October 2017 through February 2018 noted DSM-V diagnoses of MDD, exposure to violence as a child, and reports of distress owing to a motor vehicle accident (MVA) after service. Notably, his providers attributed his PTSD symptoms to violence in his history, but they also clarified that it was from childhood trauma, so pre-dating his military service, and post-service incidents, which were after his service had ended. During his mental health treatment in March 2018, even he himself denied any trauma or violence during his service. While the Board is mindful of the Veteran's contention that he has PTSD related to his service, the Board cannot make a favorable ruling based on this lay assertion. The nature and etiology of his acquired psychiatric disorder is not a simple question within the realm of knowledge of a layperson and cannot be determined based on mere personal observation by a lay person. Thus, his lay assertion is not competent to establish the required nexus. Jandreau v. Nicholson, 492 F.3d 1372, 1377-33 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Absent the required attribution of the Veteran's PTSD symptoms to his service, this claim of entitlement to service connection for PTSD must be denied because the preponderance of the evidence is against this claim, not instead supportive of it or even in relative balance for versus against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App .49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.